Chapter 12 Summing up the years

There is something in me that won’t let me walk away, that won’t accept defeat. For several years after my ‘award’ was handed down, I continued to make my case against the issues in my arbitration that were never addressed by the arbitrator; in every case to no avail.

Over the same years, the COT members have sent updated information supporting our various claims to all the appropriate government agencies, officials, politicians and senators. I have provided documented proof, again and again, that my arbitration was not carried out according to the principles of natural justice. In 2014, I briefed the Hon. Tony Abbott, Prime Minister, the Hon. Malcolm Turnbull, Minister for Communications.

I have twice gone to the Administrative Appeals Tribunal seeking documents I had been promised for my arbitration, with limited success.

Three times I have complained to the Institute of Arbitrators. The first I have already described in Chapter 9. Then in 2001 the Institute agreed to investigate fresh evidence. This was the time Mr Nosworthy informed me the arbitrator was not qualified in the course of my arbitration. Despite this, the Institute found there was no case to answer. Finally in July 2009, the Institute of Arbitrators Mediators Australia (IAMA), again agreed to investigate further fresh evidence. Among other items of evidence I submitted the words of the TIO at the Senate Estimates Committee, that the ‘process conducted entirely outside the ambit of the arbitration procedure.’

In October 2009, I sent the IAMA further evidence from forensic technical consultants attesting that someone with access to Telstra’s network had been screening and intercepting claim documents pertaining to at least four separate COT arbitrations. This material showed that for at least seven years after my arbitration was concluded someone was screening and intercepting faxed documents leaving my residence and my business before redirecting that information on to its intended destination. The arbitrator had officially agreed to address this issue of interception, but he did not. Under the terms of arbitration, he was legally bound to provide findings on all materials, but he made no reference to interception at all. This was clearly a matter for the IAMA. But their response when I proffered the supporting documentation was less than enthusiastic:

Presently, IAMA does not require this further documentation to be sent. However, the investigating persons will be notified of these documents and may request them at a later date …

No one has requested them.

I have had to ask myself, is it only me who sees the enormity of this interception of confidential, arbitration-related documents? Is it only me who is bothered about how many other Australian arbitration processes may be subject to this type of hacking, secretly and illegally screening documents before they arrive at their intended destination?

But I am not alone. One of the two forensic technical consultants attesting to the validity of their findings in that report, wrote to me on 17 December 2014:

I still stand by my statutory declaration that I was able to identify that the incoming faxes provided to me for review had at some stage been received by a secondary fax machine and then retransmitted, this was done by identifying the dual time stamps on the faxes.

The last I heard from the IAMA Ethics and Professional Affairs Committee was on 11 November 2013. Despite their agreement to investigate, they refused to hand down any findings. I have asked them on many occasions and their refusal is implacable.

I went to the TIO to complain, but his response was brusque: ‘Your arbitration is over.’

One bright note did follow from the AFP investigation into the COT cases. Even though I was unable to benefit from their work, when the AFP reported to the Minister that COT claimants’ phone conversations had been intercepted, this led to amendments in the Telecommunications Interception Act in 1995, aimed at protecting users’ privacy.

So, it is true, my arbitration is over. Even so, I am still hopeful for justice from a system that promised to give it to us. Warrick Smith, when he was the TIO, exercised no duty of care for COT members, but appeared always to act in favour of Telstra, from the moment he forced the four original COT claimants to abandon the commercial assessment process for a costly and legalistic arbitration procedure presided over by an unqualified arbitrator.

We COT members feel we have been let down by every government office we have approached for help in the face of a stonewalling Telstra and an uncooperative TIO. It is as if we are too small fry. Our problems don’t matter. We may receive replies from the relevant minister or department, but there is no follow up, no teeth in them. Only the Commonwealth Ombudsman has consistently performed its role in accordance with the principles of what is lawful and just. Ministers when in Opposition are helpful, but once they are in government, we become non grata again.

When I look back over the years since my ‘award’ was handed down I recall many moments when I contemplated giving up the fight. But how could I when the ‘award’ left out, ignored or dismissed so much? When the terms of the ‘award’ were based on fabrications and lies as blatant and easily uncovered as saying tourism numbers in my region had dropped over the period of my claim, when all the statistics showed an increase. When the chairman of Austel promised us consequential losses would be included in any awards made, but this did not happen? How could I after all the financial loss involved in preparing my case, and the business I lost, so that I was forced to re-mortgage three times just to stay in the fight to bring these matters to the attention of the Australian public and the communications minister?

If Telstra had addressed the issues of lost faxes and eavesdropping, I would probably have accepted the award — indeed, if the arbitrator had addressed the issue of lost faxes and eavesdropping, I would probably have accepted, albeit reluctantly. If the arbitrator had addressed the incorrect charging I would have accepted. And if the arbitrator had raised the issue of Telstra using falsified and impracticable documents as part of their defence I would not have questioned his integrity. If he had been appropriately qualified, I would have had more grounds for confidence in him. As it is, on so many grounds outlined in this book, the arbitrator was far from impartial and therefore not an independent adjudicator in my arbitration. But on all of these issues my claims were effectively silenced — by being ignored.

Summary

On 20 September 1995, four months after the arbitrator prematurely brought down his findings on my matters, and fully aware I was denied all necessary documents to mount my case against Telstra, an emotional Senator Ron Boswell discussed the injustices the four original COT claimants (i.e., Ann Garms, Maureen Gillan, Graham Schorer and me) experienced prior and during our arbitrations. He said:

Eleven years after their first complaints to Telstra, where are they now? They are acknowledged as the motivators of Telecom’s customer complaint reforms. … But, as individuals, they have been beaten both emotionally and financially through an 11-year battle with Telstra. …

Then followed the Federal Police investigation into Telecom’s monitoring of COT case services. The Federal Police also found there was a prima facie case to institute proceedings against Telecom but the DPP , in a terse advice, recommended against proceeding. …

Once again, the only relief COT members received was to become the catalyst for Telecom to introduce a revised privacy and protection policy. Despite the strong evidence against Telecom, they still received no justice at all. …

These COT members have been forced to go to the Commonwealth Ombudsman to force Telecom to comply with the law. Not only were they being denied all necessary documents to mount their case against Telecom, causing much delay, but they were denied access to documents that could have influenced them when negotiating the arbitration rules, and even in whether to enter arbitration at all. …

Telecom has treated the Parliament with contempt. No government monopoly should be allowed to trample over the rights of individual Australians, such as has happened here.

On 27 January 1999, more than four years after Telstra committed these offences, I received a letter from Senator Kim Carr advising:

I continue to maintain a strong interest in your case along with those of your fellow ‘Casualties of Telstra’. The appalling manner in which you have been treated by Telstra is in itself reason to pursue the issues, but also confirms my strongly held belief in the need for Telstra to remain firmly in public ownership and subject to public and parliamentary scrutiny and accountability.

Your manuscript demonstrates quite clearly how Telstra has been prepared to infringe upon the civil liberties of Australian citizens in a manner that is most disturbing and unacceptable

Senator Kim Carr again criticised the handling of the COT arbitrations on 11 March 1999 as the following Hansard link shows. Addressing the government’s lack of power, Senator Carr stated:

What I do make a comment on is the question of civil liberties and the rights of citizens to approach this parliament and seek redress for their grievances when corporate power, particularly in a publicly owned corporation, has been abused. And there can be no question that that is what is at the heart of this issue.

And addressing Telstra’s conduct, he stated:

But we also know, in the way in which telephone lines were tapped, in the way in which there have been various abuses of this parliament by Telstra—and misleading and deceptive conduct to this parliament itself, similar to the way they have treated citizens—that there has of course been quite a deliberate campaign within Telstra management to undermine attempts to resolve this question in a reasonable way. We have now seen $24 million of moneys being used to crush these people. It has gone on long enough, and simply we cannot allow it to continue. The attempt made last year, in terms of the annual report, when Telstra erroneously suggested that these matters—the CoT cases—had been settled demonstrates that this process of deceptive conduct has continued for far too long.(See http://parlinfo.aph.gov.au/parlInfo/chamberhansards1999-03-11)

The Senate Hansard of 11 March 1999 includes further quotes confirming just how scathingly critical a number of Senators were in relation to the way Telstra ran the COT arbitrations, and not the arbitrator Dr Hughes even going so far as to note that it was “a process subject to unilateral amendment by Telstra”. That the committee was able to state Telstra used their “unilateral” control of the arbitration process to avoid supplying the promised documents shows the arbitration process failed the COT cases.

Senator Schacht was possibly more vocal when he stated:

I rise to speak to this statement tabled today from the working party of the Senate Environment Communications, Information Technology and the Arts Legislation Committee—a committee I served on in the last parliament—that dealt with the bulk of this issue of the CoT cases. In my time in this parliament, I have never seen a more sorry episode involving a public instrumentality and the way it treated citizens in Australia. I agree with all the strong points made by my colleagues on both sides who have spoken before me on this debate. What was interesting about the Senate committee investigating this matter over the last couple of years was that it was absolutely tripartisan—whether you were Labor, Liberal or National Party, we all agreed that something was rotten inside Telstra in the way it handled the so-called CoT cases for so long. The outcome here today is sad. There is no victory for citizens who have been harshly dealt with by Telstra.”.http://parlinfo.aph.gov.au/parlInfochamberhansards1999-03-11)

Senator Mark Bishop's statement shown below also notes See Senate Evidence File No 56

Significant issues do arise. I think it is appropriate to refer to the final paragraphs of the committee report. In the second to last paragraph, the report of the committee tabled by Senator Eggleston says:

Estimates of Telstra's costs in relation to the CoTs issue since the claims were made exceed $20 million ($14.285 million to 1997 and rising). Most of the expenditure has been spent, not on settlement but on administrative and legal costs. It became quite clear early in the process that the claimants had in fact been disadvantaged by malfunctions in their telephone system. It is difficult to understand why Telstra appeared to prefer to deny that there was a problem and then prolonged the difficulties in establishing the extent of that problem.

The final sentence reads:

In the Committee's view, Telstra should now seek to reach a negotiated agreement with the interested parties.

If fault is to be allocated at this very early stage of the final lap, that fault lies at the door of Telstra. It really is appropriate for Telstra, a $100 billion corporation, to stop using its monopoly power, to stop retaining the services of dozens of highly paid solicitors and to come to the table and to seek to reach a negotiated agreement with these four or five persons. It is simply outrageous that Telstra, which is still a public corporation, can spend something in the order of $20 million - Senator Boswell - Some $24 million.

I am informed by Senator Boswell it is 24 million - defending a claim when the claim before it is somewhere between $2 million or $4 million. This is simply an outrageous proposition and a waste of public money (See aph.gov.au/parlInfo/search/displaychamberhansards1999-03-11

At a press conference on 26 July 2002, Senator Harris aimed questions at the chief of staff to the Hon Senator Richard Alston, Minister for Communications. He asked:

 “Through the following questions, the media event will address serious issues related to Telstra’s unlawful withholding of documents from claimants, during litigation.

Why didn’t the present government correctly address Telstra’s serious and unlawful conduct of withholding discovery and/or Freedom of Information (FOI) documents before the T2 float?

Why has the Federal government allowed five Australians (from a list of twenty-one) to be granted access to some of the Telstra discovery documents they needed to support their claims against Telstra, but denied the same rights to the other sixteen?

Why has the Federal Government ignored clear evidence that Telstra withheld many documents from a claimant during litigation?

Why has the Federal Government ignored evidence that, among those documents Telstra did supply, many were altered or delivered with sections illegally blanked out?” (See Senate Evidence File No 56 ).

In 2015, after putting a number of my documents up on my LinkedIn site, a number of offshore lawyers emailed me to express their shock and disbelief in relation to my situation.  One of them, a lawyer practising in the Egyptian Court in Cairo, said that he would be willing to provide his legal opinion regarding six separate areas where he believed the arbitration process had failed the first four COT claimants and so, with his permission, I then sent a copy of his two-page document to the Australian Federal Police, along with his name, although I decided not to publish his name on the website.  Since then he has notified me that I can now identify him in any manuscript I might prepare regarding the first four COT arbitrations, and I can also explain his reasons for believing that the arbitration process failed the COTs.

So, on one hand, we have two Australian Government investigations and one IAMA investigation that have all apparently ended, but not one of those three will hand down a finding.  On the other hand, an Egyptian legal advisor on LinkedIn clearly sees injustices that he is prepared to put his name to, if or when I publish my manuscript “Ring for Justice.”

The legal advice received from Alaa, my Egyptian lawyer LinkedIn contact concerning the unethical way in which he notes my arbitration was conducted has been provided to the Australian Federal Police as a testament at what Alaa see’s as an injustice.

Please note: the following exhibits (which we might have missed into the text of the chronology of events above) can be accessed by placing the cursor over the relevant number range in order to access that exhibit.

AS - CAV 1 to 47 - AS-CAV 48-A to 91 - AS-CAV 92 to 127 - AS-CAV 128 to 180 - AS-CAV 181 to 233 - AS-CAV 234 to 281 - AS-CAV 282 to 323 - AS-CAV 324-A to 420 - AS-CAV 421 to 469 - AS-CAV 470 to 486 - AS-CAV 488-A to 494-E AS-CAV 495 to 541 -AS-CAV 542 to 588 - AS-CAV 589 to 647 - AS-CAV 648 to 700 -  CAV Exhibits 701 to 756 AS-CAV 765-A to 789 - AS-CAV 790 to 818 - AS-CAV 819 to 843 - AS-CAV-923 to 946  AS-CAV 1150 to 1169 - AS-CAV 1069 to 1102 - AS-CAV 1103 to 1132 AS-CAV-1002 to 1019 - AS-CAV-996 to 1001 GS-CAV 1 to 88 - GS-CAV 89 to 154-A - GS-CAV 155 to 215 - GS-CAV 216 to 257  - GS-CAV 258 to 323 - GS-CAV 410-A to 447 - GS-CAV 448 to 458 - GS-CAV 459 to 489 - GS-CAV 490 to 521 - GS-CAV 522 to 580 - GS-CAV 581 to 609

The matters discussed on absentjustice.com are said in the public interest and therefore are made in accordance with the Victorian Defamation Act 2005 Defamation-division 1 Defamation and the general law see > www.legislation.vic.gov.au/Domino/Web-Note.

While in the midst of my arbitration case against the Telstra Corporation, I stumbled upon a freedom of information release by Telstra. The release disclosed that Telstra had documented and redacted my phone conversations with former Prime Minister of Australia Malcolm Fraser (Senate Evidence File No/53). During those phone conversations, I expressed my concerns that Australia was providing wheat to China in 1967 despite being aware that China was redirecting it to North Vietnam. I'm curious to know how the interception of my telephone conversations during the arbitration proceedings in 1993 and 1994 with Malcolm Fraser is related to my exposure to the government on 18 September 1967 when Australia was trading with the enemy.

What intrigues me is the reason behind documenting a seemingly harmless conversation about Australia's wheat selling to China while being aware that China was supplying wheat to North Vietnam during a conflict with Australia, New Zealand and the United States. I am confident there must be a significant motive behind this, and I am determined to uncover it.

It's difficult to fathom the extent of harm inflicted on the young Australian, New Zealand, and United States service members by North Vietnam soldiers who were fueled by the wheat supplied to them by their communist Chinese supporters. Sadly, many of these brave service people lost their lives or were left with permanent injuries.

1.     In September of 1967, I brought to the attention of the Australian government that a portion of the wheat allocated to the People's Republic of China on humanitarian grounds was being redirected to North Vietnam during the Vietnam War Chapter 7- Vietnam - Vietcong

2.    Who else in the Australian government was aware that Australian wheat intended for a starving communist China was being redirected to North Vietnam to feed the North Vietnamese soldiers before those soldiers marched into the jungles of North Vietnam to kill and maim Australian, New Zealand, and United States of America troops? Refer to Footnote 82 to 85 FOOD AND TRADE IN LATE MAOIST CHINA,1960-1978, prepared by Tianxiao Zhu, who even reports the name of our ship, the Hopepeak and how the seaman feared for our lives if we were forced to return to China with another cargo of Australian wheat. Australian wheat was being redeployed to North Vietnam during the period when Australia, New Zealand, and the United States of America fought the Vietnam Cong in the jungles of North Vietnam.   

3.   During the 1960s, the Australian Liberal-Country Party Government engaged in misleading conduct regarding trade with Communist China despite being cognizant of the fact that Australian merchant seamen had vehemently refused to transport Australian wheat to China. The grounds for such an objection were their apprehension that the wheat would be redirected to North Vietnam during the North Vietnam War between Australia, New Zealand, and the United States of America. The underlying inquiry is to ascertain the government's rationale for deliberately deceiving the general public and jeopardising the country's troops whose lives were being lost in the conflict in North Vietnam.  Murdered for Mao: The killings China 'forgot'

4.    Why didn't Australia's Trade Minister, John McEwen, correctly and honestly advise the people of Australia why the crew of the British ship Hopepeak had refused to take any more Australian wheat to China because they had witnessed its redeployment to North Vietnam during their first visit to China?